from the making-monopolies dept

Much of the focus on consolidation in the broadband industry has focused on national market share. The problem is focusing solely on national
market share implies that large companies are competing, when they don't. Just because there are multiple companies in an industry doesn't mean those companies compete. This is especially true in the broadband and wireless industries. As Susan Crawford explained

These companies don't have to agree in writing to carry this out or even raise their prices; they can simply, within their separate geographic and product territories, bundle and tie their services, buy up inputs that a competitor might need, and refuse to connect to competitors — among many other potential tactics. It's in their interest for these local monopolists to cooperate, because any defection would make the whole system crumble.

What Crawford is
describing is parallel conduct, which is when companies that would otherwise
compete create a monopoly-like setting without having to merge or coordinate
operations. Parallel conduct in the broadband industry is not hypothetical. In 2011, Comcast and Time-Warner Cable sold
parts of the wireless spectrum they owned in exchange for an agreement that
Verizon would stop expanding its fiber optic network. Essentially, Comcast and Time-Warner Cable
paid Verizon to stop offering new high-speed broadband service. (As part of the deal, Comcast and Time-Warner
Cable also further divided up the United States geographically, foreshadowing
the merger between the two companies.)

The 2011 agreement also resulted in Comcast and
Verizon's "joint marketing campaign," where they are charging identical prices for
Internet, television and phone service.
In addition to charging the same price for the same service, Comcast and
Verizon also would strongly encourage customers to buy service "bundles," of
Internet, cable TV, and phone service. The
bundles themselves are a potentially anti-competitive form of product tying. In
antitrust law, tying is presumptively illegal when tied with market power.

Parallel conduct is
not, by itself, harmful. In fact,
companies imitating one another often benefits consumers. Google, for example, which is widely
considered one of the most innovative tech companies of the last decade, has largely
offered new services which are already offered by other companies, such as
search (Yahoo), email (Hotmail), and driving directions (MapQuest).

There are two forms of
parallel conduct: parallel pricing and parallel exclusion. With parallel pricing, companies can mimic
monopoly behavior by pricing their products at the same level. Parallel
exclusion is where companies can enter into similar agreements with suppliers
or customers. For both parallel pricing
and parallel exclusion, it is much more likely to occur in industries where
there are fewer competitors, and where those competitors compete less within
geographic markets. The result of
parallel conduct is that a market with a small number of competitors, an
oligopoly, acts as one firm, which is referred to—perhaps euphemistically—as a perfect monopoly.

Tim Wu and C. Scott
Hemphill wrote
an article arguing that parallel exclusion provides a
better metric for antitrust enforcement than parallel pricing. In competitive markets, with lots of
competitors and low profit margins, companies are forced to price their goods
and services at the same price. However,
in consolidated, noncompetitive markets, companies may also price goods
similarly, through an agreement, explicit or implicit, to reduce competition. If companies are pricing similarly, there is
no way to know if that is the result of a competitive marketplace or collusion.
Punishing companies that are pricing similarly as a result of competition would be counterproductive.

The deal between Comcast, Time-Warner Cable and
Verizon is the most pernicious form of parallel conduct: an exclusionary price
control agreement between corporate behemoths. Granted, the agreement
isn't exactly news. It happened in 2012. But the Comcast-Time Warner Cable
merger has changed the competitive landscape in the industry. Absent the
agreement between Comcast, Time-Warner Cable and Verizon, the number of truly
national high-speed broadband providers would have gone from two to three.
Post-merger, it will go from two to one.

from the urls-we-dig-up dept

There are a lot of math problems that can be more easily solved with a computer because humans are prone to errors and get tired... and have lives outside of math. There are already several examples of computer programs that have helped to prove some important mathematical conjectures, but sometimes the resulting proof is too hard for humans to double-check. So we just have to write more programs to check our programs. (And hope that the computers don't conspire against us.)

from the even-the-military-knows-you-have-to-win-hearts-and-minds dept

As we've covered in two previous stories here at Techdirt, Ferguson, Missouri is a mess. The events, which now include three days of cops vs. citizens, were set off by the shooting of an unarmed black man, Mike Brown.

Even if he was a criminal, his killing wouldn't be justified. But even the most die hard cop supporter has to wonder why a person with no criminal record would suddenly escalate a jaywalking beef to the point of trying to take an officer's gun. That doesn't add up. Nothing does, not when filtered through the source delivering its top down narrative.

Local law enforcement has gone into complete lockdown mode. It has detained journalists without explanation. It has fired tear gas at an Al Jazeera America camera crew. It has filled the streets with armored vehicles, police officers in combat fatigues and has done nothing to defuse the situation.

It's plain as day that the cops have no strategy, no end goal in Ferguson. There's no leadership. They don't even understand the situation that they've found themselves in.

Basic crowd management for a group that will not, or can not, disperse is to de-escalate. The rent-a-cops at a hippie music festival know exactly what to do when the sound cuts out, but somehow the heavily militarized police force in Ferguson missed the lesson. It's a hot summer day? Well, then you hand out some water to folks. You even smile while you do it. No, the water shouldn't be coming out of firehoses while you hold back your German Shepherds.

For that matter, take off the helmets, and holster your weapons. This is basic shit for police! Never point a gun at anything you are not willing to destroy. Don't point an assault rifle at someone unless you intend to kill them. These are fundamentals of firearms safety that every 8-year-old who's ever gone on a hunting trip learned.

Instead of being cops, they're now an occupying force, setting new rules for public interaction, intimidating journalists and doing everything but ousting the population and taking over their dwellings.

This is the byproduct of militarization. No longer are they peace officers. They are now soldiers, fighting a war against their fellow citizens. Billions of dollars have been funneled into local law enforcement agencies by the DHS, giving them military tools, tactics and vehicles. And in Ferguson, we now see that every dollar of it was misspent. The local cops are geared up for a war, but they're missing one piece of technology that could likely have cleared up the mystery surrounding Mike Brown's shooting almost immediately.

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient...

The police department has not released the name of the shooter. Because he's one of the insiders. As has been pointed out by several people, we know the names of everyone charged with looting-related felonies in Ferguson. But we still don't know who shot Mike Brown. The police chief wants to protect the officer and his family, but law enforcement agencies will not return that favor should a citizen kill someone. And they will unleash entire police departments to destroy you if you shoot a cop. If you're still alive enough to give a statement, your name will be prominently displayed everywhere. Your family will be harassed by cops and citizens. Death threats will make their way through phone lines and into the mailbox. But only cops are immunized against this by policies backed by police unions and government officials.

If anyone is still wondering what happens when you increase police power (with protective policies and secondhand war machines) while decreasing accountability, Ferguson is your answer. And it's only the most visible indicator. Around the nation, it's more of the same -- but seething under the surface.

from the shredders-and-burn-barrels-have-nothing-on-automation dept

New York Governor Andrew Cuomo's office continues to do everything it can to prevent its emails from being accessed by FOIL (Freedom of Information Law) requests. As Justin Elliott of ProPublica reported earlier this year, Cuomo's office has been making use of personal email accounts to skirt FOIL requests.

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.

I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

This isn't all Cuomo's office is doing, though. It's also set its email retention bar incredibly low. With personal email accounts already removing a certain percentage of communications from the "responsive document" set, the governor's office has moved towards eradicating access to the rest, using an unusually short retention schedule. ProPublica again has the story.

Last year, the state started deleting any emails more than 90 days old that users hadn't specifically saved — a much more aggressive stance than many other states. The policy shift was first reported by the Albany Times Union.

A previously unpublished memo outlining the policy raises new questions about the state's stated rationale for its deletions policy. What's more, the rules on which emails must be retained are bewilderingly complex – they fill 118 pages – leading to further concern that emails may not be saved at all.

The state's policy is supposedly predicated on storage limitations. But this was put into place as part of a move to Microsoft's Office365, which offers 50 Gb of storage per email user. And, as ProPublica points out, the state's version includes unlimited email archiving.

Despite the reality of the storage situation (i.e, that it's not going to ever be a problem), the state still automatically deletes emails when they hit the expiration date. When asked why the state does this when it's obvious it has plenty of email storage space, it delivered this nonsensical response.

The Office of Information and Technology Services declined to comment on the record. An official in the office said even though the state can store large quantities of email, it can still be difficult to manage.

"Just because you have a big house doesn't mean you have to shove stuff in it," the official said.

Yeah, but if this "big house" was actually purchased for you by the public to store stuff it might need later, the purchasers expect you to make full use of the storage space. What it doesn't expect is for you to throw out a large percentage of its belongings (government emails are public records) every 90 days. Policies vary from state to state, with most email being held for two years minimum. Certain categories are held onto for a longer period of time, but rarely, if ever, are government emails given a shorter "sell by" date than the state of New York.

Not everything disappears at 90 days. Some are supposed to be held onto for far longer, but as far as ProPublica can tell, there's no one in place to ensure the numerous and complex retention rules are followed.

There is no internal or external watchdog to make sure the rules are being followed, [John] Kaehny [president, Reinvent Albany] said.

The state also doesn't have a standardized system for preserving emails that do have to be saved, according to the Office of Information Technology Services official. State workers can save their emails by printing them out, pasting them into Microsoft Word documents or placing them in a special folder in the email program itself.

"Everyone does it differently, and some people are still learning how to do it," the official said.

Email related to FOIL requests and litigation is supposed to be preserved indefinitely. But with de facto 90-day destruction in place, journalists and others seeking public records would need to know what they're searching for before the corresponding emails have even been composed. Government misconduct is usually discovered months or years down the road. By that time, most responsive emails will have long since been destroyed, especially when there's no one making sure possibly incriminating communications are retained.

What's being touted as a solution to an email management problem looks an awful lot like an easy way to minimize the number of responsive documents that might be returned to a citizens' rights group or an investigative journalist. Ninety days isn't acceptable as a warranty period, much less a time frame for the retention of public records.

from the the-horror dept

True Detective, the show so popular HBO couldn't stream it properly, was undeniably a major hit in its first season. The series' first iconic character, Rust Cohle, played by Mathew McConaughey, was a notably peculiar guy, often spouting philosophical statements that essentially dreaded humanity and the world in which we live. It was a big part of the grab of the show.

Mike Davis, the editor of The Lovecraft eZine, collaborated with Thomas Ligotti Online founder Jon Padgett to track down similarities between Rust Cohle's dialogue in True Detective and a Thomas Ligotti book called The Conspiracy Against the Human Race. The duo found nearly a dozen instances in which Cohle's dialogue seemed to be cribbed from Ligotti; you can compare them for yourself at The Lovecraft eZine.

The Lovecraft post solemnly outlines the definition of plagiarism -- submitting as one's own work, irrespective of intent to deceive, that which derives in part or in its entirety from the work of others without due acknowledgement -- and then goes on to say there are 12 different instances in True Detective where that definition is met. They are convinced the case is closed. Others, such as Slate's David Haglund, are quite far from convinced.

Consider perhaps their strongest example, these lines from Rust Cohle, the character played by Matthew McConaughey: “I think about the hubris it must take to yank a soul out of nonexistence into this meat … Force a life into this thresher.” At different points in The Conspiracy Against the Human Race, Thomas Ligotti refers to people being “stolen from nonexistence,” says “we are meat,” and asks, “Why should generations unborn be spared entry into the human thresher?” It’s clear from these similarities that Pizzolatto has read the Ligotti book and borrowed from it—something he has himself acknowledged, about which more below. If True Detective was not a cop show on HBO but a term paper in a philosophy class, then it would indeed be wrong for him to lift such ideas and metaphors from an author without citing him in the work itself. But Davis, at least, does not seem to fully grasp that distinction: He explains his charges by quoting a Cambridge University statement on plagiarism that was explicitly provided for people giving and taking written examinations.

This is more commonly known as inspiration or homage. It's not the kind of plagiarism typically highlighted. That's because Cohle is a fictional character, created by Pizzolato and encompassing some aspects of Ligotti's work as a small part of the character's attributes. That's no more plagiarism than using a more general archetype for a character. There is such a thing as plagiarism in fiction, but it typically involves significant amounts of a work being transposed into another. That isn't what we're talking about here.

Add to that the fact that, as briefly mentioned above, Pizzolato does indeed acknowledge Ligotti's influence, and it's difficult to understand what the hell anybody is upset about. Particularly since the accusatory post itself points this out.

Padgett also provides a timeline of people noticing those similarities and Pizzolatto acknowledging them. True Detective premiered on Jan. 12, and nine days later an interviewer mentioned “Cohle’s Ligottian worldview” in a question. In his reply, Pizzolatto didn’t refer to Ligotti by name. Nine days after that, a writer for the Wall Street Journal, Michael Calia, wrote admiringly of the parallels between Ligotti’s work and Pizzolatto’s, citing some of the same passages that Padgett has reproduced this week. (Padgett says he helped with research for Calia’s piece.) A few days later, Calia published an interview with Pizzolatto, in which the showrunner listed Ligotti first among the writers of weird fiction he’d point people to and said that the premiere episode of True Detective featured “two lines in particular (and it would have been nothing to re-word them) that were specifically phrased in such a way as to signal Ligotti admirers.”

That kind of verbal bibliography pretty much does the plagiarism charge in completely. So, for all of you Ligotti admirers out there, untwist those boxershorts and enjoy the homage to your hero, because plagiarism this is not.

from the because-patent-trollery-is-designed-to-tax-innovation dept

Wind Power Monthly (I had no idea such a thing existed) has an article about how Intellectual Ventures is apparently targeting its patent trollery towards wind power, having filed a bunch of patents on very broad and basic concepts related to wind power. Of course, IV is trying to hide its involvement here by using one of its many shell companies. For reasons that are beyond me, Wind Power Monthly declines to name the shell companies. It's not clear why it does this -- even withholding the name after it got IV to confirm that it's an IV shell. There seems to be no journalistic reason for withholding the name, but Wind Power Monthly still does it.

Asked about the IV holding company, a spokesperson confirmed its relationship and added: "Intellectual Ventures does file some patents invented during sessions held by its in-house invention group... under the holding company [name withheld] to help maintain its patent portfolio."

The report further warns that patent trolls appear to be on the lookout to buy up other broad, wind power-related patents on the cheap as this particular market is expanding.

Second or third-tier wind manufacturers may be most exposed to trolls, especially as wind patents are currently relatively cheap, as they are during any downturn. Such manufacturers are a worthwhile target financially, may not have a robust IP strategy, and are far more likely to settle rather than fight in court.

Of course, right now we should be helping to speed up the adoption of alternative energy sources like wind power, but these patent trolling activities do the exact opposite, they make it more expensive. Notice that the article doesn't talk about any of these methods actually advancing the pace of innovation in the field, mostly because they don't. These aren't companies with experience building or managing wind power systems. These aren't experiences learned in the field. They appear to be pure trolling techniques designed to put a toll on the companies actually innovating in the field.

from the truly-remarkable dept

Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.

"Staydown":

Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in
an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for
copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

from the time-to-change-things dept

Last night we wrote briefly about the police in Ferguson, Missouri, detaining two journalists -- Wesley Lowery of the Washington Post and Ryan Reilly of the Huffington Post. The situation in Ferguson was already a mess in terms of the police killing an unarmed teenager, responding poorly to that situation, and then making things worse by challenging citizens' rights to free speech and to assemble. Taking it a step further and targeting journalists further shows that the police in Ferguson, beyond having little plan on what to do, were looking to suppress the flow of information about what was happening. Soon after that post went up, the police went even further in teargassing a reporting team from Al Jazeera America. Living in the US, the idea that reporters from Al Jazeera might face teargassing from "security forces" may not seem that strange... if it were in the Middle East. But this is in Missouri, which should say something about how much we've lost the plot here in America.

It's pretty clear from the video that the teargas was shot directly at the press -- who were obviously members of the press getting their lights ready for a live shot. There were further reports that the police also fired rubber bullets at those same reporters.

But of course, in this day and age, focusing just on the "professional" press is kind of meaningless. Anyone can be a part of the press, and that's happening quite frequently. Local Alderman Antonio French went out into Ferguson and was doing plenty of reporting, even if he wasn't professional media. Here were some of his tweets from last night:

Wesley Lowery, the Washington Post reporter who was detained, noted that French provided the "biggest public service" he'd seen so far in covering what was happening... and that he was "appalled" to find out that, of course, French was arrested. Unlike with Lowery and Reilly, who were detained and not charged, French was charged with "unlawful assembly" and was thrown in jail. While police said he would be in jail for 24 hours, after protests emerged around the arrest, French was released this morning.

The whole thing highlights just how dangerous this situation has become and how police in Ferguson appear to be trampling over basically every constitutional right they can come up with (there was a joke on Twitter last night -- and forgive me for not being able to track down where it originated -- that before too long, police in Ferguson will be demanding to be quartered in residents' houses...).

We've been covering the ridiculous trend of militarizing the police for quite some time (though nowhere near as long as Radley Balco, who has been warning about this for ages, with very few people paying attention...), and just last month highlighted just how ridiculous it has become. In many, many cases, the militarization is actually driven by the Department of Homeland Security giving local police forces cast off military equipment for free. In the past 12 years, DHS has given $35 billion (with a b) in grants and equipment to local police forces. I recently found out that the local police in the small sleepy suburb where Techdirt's offices are located got themselves an MRAP, and it scares me silly.

Glenn Greenwald is noting that the events in Ferguson are finally dragging the horrors of a militarized police force into the limelight, and I hope it leads to a severe about-face. Ryan Cooper, at The Week, has a similar piece, saying that what's happening in Ferguson shows why you don't militarize police. Another comment (again, sorry for the lack of attribution as I can't find it now) that flew by on Twitter was something to the effect of that the military is trained to take out an enemy, while the police are supposed to be the public's servants. But when you militarize the police, the public becomes the enemy.

Given all this, Trevor Timm, of the Freedom of the Press Foundation, rightly notes that the militarization of the police is now a press freedom issue as well:

But until now, this issue has not really reached the mainstream, or if it has, it's been thought of as something that happens in a foreign authoritarian country and not the United States. Besides the arrests yesterday, you can watch video of Al Jazeera journalists being tear-gassed by these police forces (and perhaps mistake it for footage from Tahrir Square in Egypt). Or you listen to a brave citizen journalist operating a livestream describe events as police demand people to turn off their cameras, just as the tear gas and rubber bullets start to fly. Or you can think about citizen journalist Antonio French who was not as lucky as the other two reporters and is still sitting in jail.

In response to the travesty in Ferguson, the Justice Department indicated it may re-open a broad review of local police tactics around the country to investigate some of these issues. That is the least they should do. The rights of countless lawful citizens have been trampled on in Ferguson and around the country thanks to these police tactics, and something needs to be done soon.

But reporters should take note: these issues don't just affect protesters, but also affect those who cover the protest. It creates an environment where police think they can disregard the law and tell reporters to stop filming, despite their legal right to do so, or fire tear gas directly at them to prevent them from doing their job. And if the rights of journalists are being trampled on, you can almost guarantee it's even worse for those who don't have such a platform to protect themselves. Mr. Lowery said it best after he was released from jail yesterday:

“I knew I was going to be fine,” he said. “But the thing is, so many people here in Ferguson don’t have as many Twitter followers as I have and don’t have [Washington Post owner] Jeff Bezos or whoever to call and bail them out of jail.”

And, of course, what that really shows is that this is not just a freedom of the press issue, but a freedom of speech issue -- and, more broadly, a freedom issue, period. By militarizing the police, DHS and the federal government have set up a situation that is designed to snuff out free speech, freedom of assembly and the rights of everyone. It is trampling the very constitution it is supposedly defending. It's a complete travesty. It's been going on for a while, but the events in Ferguson only serve to highlight just how ridiculous and dangerous the situation has become.

from the 'I-concur-with-my-own-finding-that-this-complies-with-the-4th-Amendment' dept

As we've been covering for the past few months, there seems to be an emboldened set of magistrate judges willing to push back against broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing that prompted the Fourth Amendment in the first place.

But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt." As was noted here back in May, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.

Another Facciola refusal, one that had twice crossed his desk has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.

The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges and pointed out in the decision with the exact same footnote), Roberts again found that the government should generally be deferred to because it "knows best."

With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.

Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.

But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine with being nearly out-of-date by the time it was codified in 1986.

As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.

While Facciola argued that the old way (grab everything and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.

Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).

And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after the damage is done.

As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.

That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.

So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.

from the so,-more-of-the-same,-then? dept

James Clapper's office (ODNI) has released a large batch of declassified documents, most of which deal with the NSA's discontinued Section 402 program. What this program did was re-read pen register/trap and trace (PR/TT) statutes to cover internet metadata, including sender/receiver information contained in email and instant messages. (Not to be confused with the Section 702 program, which is still active and harvests internet communications.)

Notably, this marks only the second time that the ODNI has acknowledged the document release has been compelled by a FOIA lawsuit.

Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”). These documents are also responsive to a Freedom of Information Act request by the Electronic Privacy Information Center.

As EPIC's site notes (and the ODNI's doesn't), the program was authorized in 2004, but no legal justification was provided to Congressional oversight until a half-decade later. Contrast that fact with the ODNI's statement:

The information released on August 6, 2014, together with documents previously released, demonstrates the extent to which the IC sought and received FISC approval to collect electronic communications metadata under the PRTT provision, the oversight regime of internal checks over the program, and that Congress was kept fully apprised of the status of NSA’s electronic metadata collection.

Apparently, in intelligence jargon, "fully" is synonymous with "eventually."

Despite the program being discontinued, the documents are still heavily redacted. For instance, in the original opinion and order that found the bastardized PR/TT compliant with the Fourth Amendment, the government's description of "meta data" runs multiple pages, almost all of it covered in black. The government acknowledges the email metadata, but redacts everything else -- including testimony given on record to legislators. Chris Soghoian of the ACLU easily found some of the redacted text elsewhere on the web.

So, the declassification review apparently decided the public shouldn't know the NSA collected instant messaging with its discontinued program. Too bad it was discussed openly in a Senate hearing.

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

To the government, the most insanely expansive reading is the "best" reading. As Wheeler notes, this self-congratulatory paragraph is another example of why secret courts are dangerous.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But it's still, to this day, a secret court. And the documents released show it's still a largely deferential court -- one that actively allows the administration and the NSA to do its thinking for it. It's never been an adversarial court and has only very rarely acted like it's part of a system of checks and balances. In Judge Kollar-Kotelly's long defense of mutating PR/TT into an internet metadata dragnet, she puts words in Congress' mouth and removes potential roadblocks with alarming speed. Whatever slack the FISA Court fails to cut the administration, it cuts for itself. From the same memorandum quoted above:

Here, construing FISA to preclude the signals intelligence activities that the Executive Branch has concluded are vital to wartime defense of the Nation would raise a grave constitutional question about whether the statute, as so construed, impermissibly impinges on the President’s constitutionally assigned authorities as Commander in Chief and Chief Executive.

[...]

In almost all cases of potential constitutional conflict, if a statute is construed to restrict the Executive, the Executive has the option of seeking additional clarifying legislation from Congress. In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.

That's the Executive Branch cutting the Legislative Branch out of the loop, and doing so with assistance provided by an offshoot of the Judicial Branch. That's the vaunted oversight being kicked to the curb in order to oblige the NSA. The system of checks and balances apparently is unworkable during times of war.

All of this is unsurprising, given what we've learned about the FISA court over the past several months (as well as the government's arguments in support of dragnet surveillance programs). Equally as unsurprising is the fact that the NSA immediately took this new program and abused it, just like it's abused everything else it's been entrusted with by the FISA Court.

The government, the document indicates, “acknowledges that NSA exceeded the scope of authorized acquisition continuously during the more than [redacted] years of acquisition under [the] orders.”

When not abusing the limits of the program to gather information it shouldn't have had access to, the NSA was sharing its ill-gotten goods with other government agencies, ignoring its own rules about dissemination by distributing unminimized US persons' data. But despite this evidence of wrongdoing, no one was punished and, in fact, the government didn't even feel compelled to explain its actions to the court.

As was noted above, the supposed oversight that's supposed to help prevent this sort of abuse wasn't even apprised of the program until five years after the FISA court gave its approval. The documents forced out of the NSA's hands by a handful of lawsuits clearly shows the agency can't be trusted to police itself and isn't interested in letting anyone else tackle that job.

Taylor D. August, of the Dept. of Education's Office for Civil Rights, is also a FOIA Denial Officer. Considering the government's general antipathy towards transparency, you'd think several agencies would have a full-time request denier on staff. But while many agencies spend more time stonewalling and denying requests, only the Dept. of Education actually has designated employees on hand solely to reject requests.

10. Who has the authority in ED to withhold documents (in part/whole)?

The FOIA Officers, the Office of Inspector General and the Regional FOIA Denial Officers have the authority to withhold documents.

It appears this agency is extremely well-equipped to handle numerous rejections. Three tiers of rejection are available to requesters, running all the way up to the OIG. There's no reason given as to why the DOE would need regional "denial officers," but this position traces back to 2006.

In a section titled (of all things) "Customer Service," the DOE details its FOIA response automation, which routes through the Office for Civil Rights. Citing the "significant number" of requests it receives (at that point averaging around 900 per year), the agency detailed its efforts to keep up with the paperwork.

To further customer service with respect to FOIA and Privacy Act requests, OCR has been a significant participant in the Department’s initiative to automate case management under these laws. Executive Order 13392, “Improving Agency Disclosure of Information,” issued on Dec. 14, 2005, emphasizes the need for more efficient and effective processing of FOIA and Privacy Act requests.

What most of us would believe was an order intended to increase the release of responsive documents, the DOE read it as an indication it wasn't rejecting requests efficiently enough.

In addition, in FY 2006, consistent with Executive Order 13392, OCR established new FOIA procedures, including delegation to the 12 OCR office directors of the authority of FOIA denial officers. This allows FOIA requests to be processed in a more efficient and timely manner, and establishes clear accountability for FOIA processing.

As of 2006, the DOE had 12 more officials dedicated solely to rejecting FOIA requests than all other government agencies combined. (Unofficial numbers obviously impossible to obtain, much less verify, but the term "FOIA denial officer" produces search results that indicate only the DOE has such a position.)

More details on the "Denial Officers" can be found in the agency's FOIA policies and procedures (embedded below.) Here's the definition of the term:

Denial Officers. The FOIA Officers, the Secretary's Regional Representatives, or officials designated by them (Regional FOIA Review Officers), and the Office of Inspector General (OIG) who are authorized to withhold records, in whole or in part, that fall within one (1) or more of the nine (9) exemptions or three (3) exclusions of the FOIA.

Initial determinations are made by regular FOIA officers who look for possible withholding exemptions and consider fee waivers. This is handled regionally and requests possibly eligible for rejection are passed on to one of the 12 regional denial officers.

In each instance in which it is recommended that record(s) or portion(s) thereof be withheld, carefully separate materials to be withheld from those to be released, redact (e.g., remove) all exempt information from the records, and forward a copy of the redacted materials, along with an unredacted version for comparison, to the appropriate denial official. Indicate where in the records the redactions occur and why the relevant exemption(s) apply;

In each instance where "no responsive records" are located, forward (a) a memorandum to the appropriate denial official describing with particularity what records (both electronic and hard copy) were searched, search times (differentiating between computer search times and manual searches since there is a different fee rate assessed for each of these searches), and who conducted the search, and stating that the search results were negative together with (b) a draft denial letter to the requestor to be signed by a FOIA Officer;

Denial officers will always be the be the bearer of bad news.

If the denial official agrees with the recommendation to deny the request, the denial official notifies the requestor in writing of the decision to withhold the information, in whole or in part, and informs the requestor of his/her appeal rights.

However, the denial officer isn't solely limited to writing rejection letters. He or she can also push back.

If the denial official disagrees with the recommendation to deny the request, he/she notifies the FOIA Coordinator and the PO Action Office and directs the FOIA Coordinator to provide the records to the requestor.

At which point, the requester receives the responsive documents thanks to a denial officer, but from someone whose title is less resolutely negative. As much fun as it might be to press the REJECT button, denial officers will never know the joy of making a requester happy. It's a thankless job with a brusque title… unless you're the sort of person who enjoys doling out rejection or simply takes pride in your work, no matter what that work might mean.

It seems odd that the DOE would stand alone in its creation of a FOIA Denial Officer. So many government agencies are more than happy to reject request after request (and appeal after appeal), but none have been so brutally honest as to create a position solely for this purpose. The DOE's system may actually be more streamlined than those at comparable agencies, but only the DOE has the strength of character to let requesters know that a fully and specifically trained expert is behind their request's rejection.

from the because-DANGER-and-also-office-gossip dept

Citing the case of Eddie Lampert, an investor who was abducted in 2003 by ransom-seeking kidnappers, the letter to Assistant Rhode Island Attorney General Michael Field from Raimondo’s office further argued that disclosing too much information about financial fees and compensation could endanger the lives of hedge fund managers.

Notice that it's only hedge fund management Rhode Island treasurer Gina Raimondo is concerned about. Although upper level management in other industries is likely compensated at rates attractive to ransom-seeking kidnappers, Raimondo just wants this select few to be exempt from public disclosure. This is for several reasons, but mostly this reason:

Raimondo is a Democrat who founded one of the financial firms that manages Rhode Island pension money.

Raimondo's letter, in addition to raising ridiculous kidnapping fears (the thing that happened ONE TIME, more than a decade ago), also claims that publicizing hedge fund managers' compensation makes it hard to get any work done around the office.

"Fund managers keep this information confidential to help preserve the productivity of their staff and to minimize attention around their own compensation..."

These reasons were all cited in the state's refusal to disclose details of hedge fund management contracts to Rhode Island's largest newspaper, the Providence Journal. Not covered in the refusal letter was Raimondo's involvement in steering billions of dollars of state pensions into funds with higher risks and higher fees, or that Raimondo's firm, Point Judith, receives a cut of the $7.7 billion at stake.

Of course, the spokesperson for the treasurer's office claimed the office was all about transparency.

“Rhode Island has become a national leader in disclosing management and performance fees paid to all investment managers, including hedge funds, private equity, equity and fixed income managers." The state has disclosed the total fees paid to financial managers while merely withholding the management contracts, the treasurer's office maintains.

Her office also maintains that Raimondo has done everything possible to insure her position avoids any conflicts of interest. And yet, her office tells journalists it won't be releasing public records about state pensions. If I were a government official foisting some sort of new surveillance on the public, I would say this lack of openness indicates Raimondo has something to hide. But I'm not one of those people. Instead, I'm just more than a little cynical which, oddly enough, brings me to the same conclusion.

It's hardly surprising that a government official would try to use fear (kidnapping!) as an excuse to keep public records away from the public. This tactic informs nearly every FOIA request refusal from our nation's investigative and intelligence agencies. This misdirection is used to excuse all sorts of misconduct from law enforcement officers. This is also used to ensure backroom deals stay hidden in the back room. If Raimondo has truly "taken all recommended steps" to avoid conflicts of interest, then she should have no problem turning over these contracts. But she's gone the other way, surprising no one and further widening the distance between her office and the public it's supposed to be serving.

from the and,-as-usual,-it's-still-the-taxpayers-being-acrobatically-fucked dept

It's sometimes hard to believe, but government employees are people. And like most people who have access to an internet connection, they occasionally go surfing for porn. Perfectly normal. Except… well, except for many things.

Only the truly unemployed would be likely to go searching for porn as often as one SEC employee did, when he ran into the agency's anti-porn firewall 1,800 times during a two-week period, without ever once considering this was how the system was designed, rather than just an indication that he wasn't trying hard enough. Multiple employees at the agency were reprimanded for watching porn on their work computers for "98% of the workday."

A state official in Oregon infected the government's computer system with a nasty trojan hitchhiker picked up while surfing for porn. This resulted in a data leak, but the employee was reprimanded solely for using a work computer inappropriately.

An investigation by the EPA's Office of the Inspector General (OIG) found one employee had downloaded and viewed more than 7,000 pornographic images while on the clock. When OIG investigators went to ask the employee about the images, they found the employee "actively viewing pornography."

For one Federal Communications Commission worker, his porn habit at work was easy to explain: Things were slow, he told investigators, so he perused it “out of boredom” — for up to eight hours each week.

[...]

“He stated he is aware it is against government rules and regulations, but he often does not have enough work to do and has free time,” investigators wrote of another federal employee, this one at the Treasury Department, who viewed more than 13,000 pornographic images in a six-week span.

[...]

In another recent case, a GSA employee who spent about two hours a day on a computer looking at pornography and dating sites “sometimes became bored during these long hours at the computer and would often use the computer for personal use to pass the time,” according to a case report by the GSA inspector general last year.

Now, I don't know about you, but I've had boring jobs before, where not every minute of the day was spent working. And I've had access to the internet at the same time. And not once did I think the lack of work meant I should use work computers to access porn. Not once. But for these government employees, it's apparently a legitimate excuse. Boredom is all the justification needed to break the universal rule that work computers should not be used to access NSFW sites. And they didn't just do it a couple of times. They did it constantly. It's completely disingenuous to blame your job for your porn habit, especially when your employment is funded by money taken from people directly out of their paychecks without their explicit consent.

But what's worse is that those farther up the food chain at these agencies are treating this piss poor excuse as though it's valid -- or at the very least, refusing to take the situation seriously.

Investigations at the Department of Housing and Urban Development, the Commerce Department and the General Services Administration have turned up similar cases, though memos show the employees rarely face criminal prosecution for time and attendance fraud.

A spokesman for the FCC declined to comment on what, if any, action the agency took after the FCC’s inspector general singled out the eight-hour-a-week porn peeper.

FCC spokesman Mark Wigfield said only that the agency follows Office of Personnel Management guidelines on disciplinary matters and officials could not comment on specific cases.

So, bored federal employees will continue to surf for porn or otherwise waste tax dollars because there's zero accountability. These stories surface so frequently because an OIG investigation only uncovers wrongdoing. The reports are almost always scathing indictments of federal money being misspent and mismanaged and yet, all the OIG can do is make recommendations. The agencies themselves have to change and they almost universally refuse to do so. The problems are so ingrained at this point that no one wants to make the effort needed to enforce some level of decorum and accountability. Only rarely does external pressure have any influence, and legislators have been hesitant to create additional means of enforcement or deterrence.

The government mantra seems to be "if it's broke, don't fix it." There's nothing wrong with viewing porn, but there's plenty wrong with using government computers and punching the clock while doing it. If we can't expect lower-level agencies to be accountable to the public, why should we be surprised the administration itself feels exempt from this crucial aspect of democracy as well?